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Wednesday, October 28, 2015

Ind. Decisions - "Supreme Court decries police eavesdropping" [Updated]

At 9 AM this morning our Supreme Court heard oral argument in State of Indiana v. Brian Taylor, the Michigan City police eavesdropping case. (See ILB summary/links here.)

Dan Carden of the NWI Times reports on this morning's oral argument:

INDIANAPOLIS | The justices of the Indiana Supreme Court Wednesday strongly condemned the act of eavesdropping by Michigan City police and LaPorte County prosecutors on a private conversation between a criminal suspect and his attorney.

That violation of the constitutional right to consult with an attorney was described as "blatant" by Chief Justice Loretta Rush, "egregious" by Justice Brent Dickson, a Hobart native, and Justice Steven David said, "It doesn't get much worse than this."

However, the state's high court appeared unwilling to potentially short-circuit a murder trial by upholding LaPorte Superior Judge Kathleen Lang's decision to bar all trial testimony by the officers who listened in. * * *

At the Supreme Court, Rush suggested a blanket ban on police testimony, including for foundational or evidentiary matters untainted by the eavesdropping, would make Taylor "better than whole."

Justices Mark Massa and Robert Rucker, a Gary native, seemed to agree.

Rush indicated that prosecutors might be required to remedy the violation by having to show an origin, other than eavesdropping, for every witness and every piece of evidence presented to the jury, which she described as a "whale" of a burden.

Payne, Taylor's attorney, argued that still is inadequate and potentially breaks the seal on attorney-client privilege as it is impossible to otherwise know what the police heard, since the officers have asserted their Fifth Amendment right against self-incrimination.

He urged the Supreme Court send a strong message that police eavesdropping and similar constitutional violations never will be tolerated and must be severely sanctioned.

"The defendant cannot be made whole, so long as there is tainted evidence or tainted witnesses presented to the jury," Payne said.

Deputy Attorney General Brian Reitz, representing the prosecutors, concurred that any evidence obtained through eavesdropping must be prohibited, including the suspected murder weapon.

But he said nothing is gained by disallowing police testimony about impounding a vehicle or collecting forensic evidence, especially when it occurred prior to the eavesdropping.

In response, Dickson warned of a potential slippery slope where police and prosecutors might resort to torture or take other illegal actions against criminal suspects, but then still be allowed to proceed to trial using evidence allegedly gleaned through other means.

A decision by the state's high court is expected early next year.

You can watch the oral argument here. [although you must have Adobe Flash to watch it...]

[Updated on 10/29/15] Here is another take on yesterday's oral argument, this one from Rick Callahan of the Gary Post-Tribune. Some quotes:

[Chief Justice] Rush said the eavesdropping was no accident and questioned Brian Reitz, a deputy state attorney general who is representing prosecutors, about his comment that the officers "may have overheard" some of the conversations.

"May have overhead the conversation? It's pretty blatant here, it wasn't like an accidental walking by and someone is speaking loudly," she said. * * *

The high court took up the case in September, three months after the Indiana Court of Appeals found that LaPorte Superior Court Judge Kathleen Lang correctly barred the gun as evidence but went too far in barring all the officers' testimony.

Reitz told the justices Wednesday that Lang's order was "an extreme sanction" and the officers should be allowed to testify about evidence they collected before the eavesdropping.

Justice Mark Massa called the officers' eavesdropping "egregious police conduct, unprecedented" and Justice Brent Dickson called the officers' actions "despicable."

Posted by Marcia Oddi on October 28, 2015 01:49 PM
Posted to Ind. Sup.Ct. Decisions